U.S. case law has established that encryption
software source code
without
binaries is considered protected speech
under the First Amendment and
does not
require an export license for publication.
The two key cases that support this are:
-
Bernstein v. U.S. Department of Justice
Daniel J. Bernstein, a Ph.D. student, developed an encryption algorithm and wanted to publish the source code and a paper describing it.
The government at the time required an export license under ITAR. Bernstein challenged this restriction.
The Ninth Circuit held that software source code is speech and that export regulations on its publication violated the First Amendment.
Read the court opinion:
Bernstein v. U.S. Dept. of Justice – Ninth Circuit Ruling
Summary and documents from EFF
-
Junger v. Daley
Peter Junger, a law professor, sought to publish encryption source code for educational use and challenged export control laws.
The Sixth Circuit ruled that source code is protected speech, reaffirming the precedent set by Bernstein.
Read the court opinion:
Junger v. Daley – Sixth Circuit Opinion (Justia)
Casetext: Junger v. Daley
Conclusion
These decisions collectively affirm that source code for encryption software,
when not compiled into binaries, is protected by the First Amendment as a
form of expression and therefore publication does not require an export license.